Copyright Quick Takes

(1) The latest anti-piracy measure launched this week after three months of delays, backed by the content industry, five ISPs, and the White House, via CNET:

The “Copyright Alert System,” aka “six strikes,” kicked off today with the cooperation of five major Internet service providers. The goal of the new campaign is to curb copyright infringement by going after consumers rather than pirates.

While the CAS seems like something that would raise the hackles of privacy and civil liberty groups, the plan isn’t to arrest, sue, or fine people downloading illegal movies, games, or music. Instead, the group managing the program — the Center for Copyright Information — says its objective is to “educate” such downloaders that they are infringing on protected intellectual copyrights.

“Implementation marks the culmination of many months of work on this groundbreaking and collaborative effort to curb online piracy and promote the lawful use of digital music, movies and TV shows,” executive director for the Center for Copyright Information Jill Lesser wrote in a blog post today. “The CAS marks a new way to reach consumers who may be engaging in peer-to-peer (P2P) piracy.”

Unlike other graduated anti-piracy enforcement measures such as three-strikes laws in France or the UK, this one isn’t going to be enforced by a government regulator.

First and foremost, Verizon is committed to protecting our customers’ privacy and we will not be sharing anyone’s identity with the content owners as part of our Program. Second, Verizon’s role in the Program is to forward to our customers information gathered by the content owners about possible peer-to-peer copyright infringement taking place on the customer’s Internet connection so they can take steps to address the possible infringing activity on their account. Finally, the goal of our Copyright Alert Program is to build education and awareness around the important issue of copyright infringement, and to help our customers find lawful ways to find and enjoy digital content.

In layman’s terms, what this means is that the first time you get caught by an ISP–or rather, the first time a copyright holder informs your ISP that their may be something going on–they’ll let you know what you’re doing is illegal. If you keep doing it, they’ll take increasingly more aggressive steps, right up to suspending, but not terminating, your service. According to documents obtained last year by TorrentFreak, it could also include blocking certain websites.

Mostly what this is is a codification of existing practices, and file-sharers can still be subpoenaed by the rights-holders. Some ISPs already throttle file-sharers’ bandwidth, so that’s not really new, though to my knowledge the threat of suspending service is new. The MIT Technology Review calls the system “toothless,” and says the “whole thing bends over backwards to reassure people that Big Brother is not watching.”

(2) Sonny Bunch reviews Jerry Brito’s Copyright Unbalanced in the Weekly Standard, admonishing libertarian and conservative critics for ignoring the “moral dimension” of copyright based on, of all things, the labor theory of value:

By ignoring the moral component of copyright—by telling content creators (and yes, the media corporations that employ them) that it’s no big deal if young people steal music, books, movies, and television shows because “they probably wouldn’t have bought it anyway” or “you’ll make it up when they attend your concert/buy your DVD collection”—we are working diligently toward creating a world in which there is little content, and the content that is produced is of meager quality.

So yes, let’s figure out how we can reinvigorate the public domain, and ensure that fair use is defended. But let’s do it in a way that doesn’t trample on the rights of those who actually create what we consume.

For what it’s worth, the Constitution’s copyright clause isn’t written in “moral terms,” though I take his point, citing Adam Mosoff, that the founders’ understanding of copyright was to some degree grounded in natural rights. The only reform he seems to endorse is finding a better definition of fair use, and the example he gives is DMCA pettifogging over a Romney campaign ad. Beyond fair use there’s a lot more that could be done–reforming orphan works, civil asset forfeitures, and statutory damages–that doesn’t involve rolling back artists’ rights at all. He also makes a weird claim:

It is unlikely that copyright reform will help the GOP reconnect with voters. But it is a sign of how rancorous the argument over copyright protection has grown among the elite class that the soon-to-be-fired author of a little-read, hastily dismissed paper on the subject would merit a mention in the New York Times as a leader of right-leaning thought.

How can one say copyright is a discussion for the “elite class” that voters don’t care about, and then in the same breath indict a generation of feckless “Millenials and their enablers” for their entitled attitudes toward file-sharing? It is an issue that will help the GOP reconnect with voters. Whether they care about the principled free-market arguments in favor of copyright reform or simply like the idea of a major party making a decent showing of IP-skepticism doesn’t even matter. This is anecdotal, sure, but if you read the comments on news stories about that “little-read, hastily dismissed” RSC memo (an absurd characterization of something that was covered in Bloomberg, Slate, and just about every tech news website out there), and you’ll see that there are even some people that would switch parties over IP issues alone.

(3) In other copyright news, a petition asking the President to reconsider the illegality of smartphone unlocking passed 100,000 signatures last week on the White House’s website. It has yet to receive a response. Derek Khanna, who should be familiar to TAC readers, was one of the petition’s authors. At his new Forbes blog he brings word that the Competitive Carriers Association (CCA) supports lifting the ban. Their endorsement is interesting because while it’s comprised primarily of small rural wireless providers, it also includes Sprint and T-Mobile–basically everyone who isn’t Verizon or AT&T, the two companies with the most at stake keeping the ban in place.

Which copyright laws? The ones we had before 1976? The ones after 1976, up to the Sonny Bono Copyright Term Extension Act of 1998? The ones now, including the DMCA?

It’s really unhelpful to think that this is a simple binary argument between one side that thinks copyright should be totally abolished and another side that thinks it’s fine the way it is now. There are lots of positions between these two poles.

Jordan Bloom wrote of some worrying about what he says is their perception of the “moral” dimension involved in “of all things, the labor theory of value.”

First of all it sure sounds to me that the copyright laws need some revisions in lessening the protection they afford, and very possibly some very big revisions in that direction.

With that said however Jordan is wrong to diss the relevance of (Marx’s) labor theory of value in this conversation, not only because he’s wrong in believing it’s irrelevant to the moral dimensions involved, but because in both its moral *and* economic dimensions it’s relevant as hell. (And cuts in the direction of certainly at the very least being careful to protect what are the big virtues of copyright protection.)

That is, in the moral sense Marx was right insofar as he perceived that there is a moral dimension to work and protecting the wealth that workers produce for those workers, and if there’s a moral dimension to the work done by a coal-shoveler then there’s a moral dimension to that done by a song-writer or author too.

But Marx of course was far more profoundly economically wrong in his theory in perceiving that the sole producer of value/wealth was physical labor. Obviously, *intellectual* labor—and indeed pure intellectual labor—can produce incredible wealth. Just ask the guy who thought up the idea of replacing the fishing spear with a net. (Although without a patent he didn’t reap that particular wealth.)

The idea of intellectual property therefore has both moral and economic aspects to it. Protect it too little/for too short a period and you are discouraging people from engaging in the creation of it, and thereby inhibiting the creation of wealth.

But, no doubt, protect it too much/for too long and clearly you are discouraging other innovations and thereby inhibiting the creation of wealth too.

All’s I’m saying then is that the labor theory of value—just as is true with any theory of value/wealth—is indeed relevant and highly so in this debate.

It’s interesting to see the ISPs go along with something like this — in general, their interests are adverse to copyright holders, because regardless of wether someone is using his Internet service to torrent movies or stream them off Netflix, regardless of wether he’s paying for his movies or not, he’s still paying his ISP, and someone who’s paying nothing to obtain copies of movies has a much higher propensity to use (and pay for) Internet service.

It is an issue that will help the GOP reconnect with voters. Whether they care about the principled free-market arguments in favor of copyright reform or simply like the idea of a major party making a decent showing of IP-skepticism doesn’t even matter.

It is a somewhat dubious suggestion that the demographic we’re talking about would trade liberal social policies or Obamacare for the right to download Game of Thrones free of the remote possibility of harassment. I certainly don’t think they’d trade those things for the sort of hollow fig leaf of respect “making a decent showing” suggests.

Also, Republicans, TEA Party or not, do not strike me as plausible vessels for the civil lib, anti-authoritarian, culture jamming ethos implicit to the Free Content attitude.

My impression is that the ISPs are pushing this because they want to avoid any alternatives that might impose severe burdens on them to police their customers. And quite understandably so; the copyright owners have been trying to make ISPs do their detective work for them for some time now.

So what about those companies that are auto-flagging non-pirated files as their property because the file names are vaguely similar (yes this happens, a lot). I am going to be in trouble if I download one of those files now.

Sonny Bunch thinks that the death of copyright would lead to “a world in which there is little content, and the content that is produced is of meager quality”? That no doubt explains the mediocrity of Shakespeare, to mention just one name.